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Scottish Court of Session Decisions >>
Balfour v Mr. George Forbes. [1700] Mor 16318 (24 January 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Mor3716318-240.html Cite as:
[1700] Mor 16318
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Balfour of Broadmeadows, as eldest son to the Laird of Kaillie, pursues Mr. George Forbes, late Minister at Traquair, as his tutor, to count for his means, conform to a charge, one of the articles whereof was £.400 Scots due to his father by the Countess Dowager of Traquair. Alleged, I cannot be liable for the whole sum, because, having no writ constituting the debt under the Countess' hand, he was necessitated to transact it for 226 merks in money, and 20 hogs, in regard she had a claim against the said Balfour of Kaillie as possessor of one of her life-rent rooms. Answered, Tutors cannot transact at their own hands, without a legal necessity; and here there was none; for he was her chamberlain, and that was given him for his fee, as appears by a discharge of one of the years of his possession, and so she could never have founded a ground of compensation on that debt; and therefore the tutor was either in mala fide, or grossly negligent, to have componed and given down. Replied, A legal necessity for a tutor's transacting does not alway require a decree for his warrant, but may even arise from the clearness of the contrary party's right, when no relevant defence can be obtruded against it; and which was his case. The Lords would not in the general find, that tutors might not, in any case, transact their pupils' affairs; for, in some dubious and intricate cases, such transactions have been allowed as warrantable; but in hac facti specie they found no such necessity incumbent on this tutor, and therefore found he had transacted on his own hazard, and behoved to count for the whole.
